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A defendant has a constitutional right to confront a witness that is accusing him. The basic rule is that prior statements cannot be used unless the defendant has had a chance to cross exam the witness. There are two exceptions that have been recognized: if the statements are made as the witness is dying or that the defendant forfeits his constitutional right by wrongdoing.

Forfeiture by wrongdoing refers to when the witness is detained or kept by means or procurement of a defendant from testifying. Justice Alito wrote the opinion in Crawford which held that a defendant could not keep a witness from testifying and then have prior statements excluded. However, in Giles v. California , No. 07-6053, the Court further interpreted this exception. The interpretation of the word procurement can mean just that the defendant caused the absence, but can also mean that it is limited to causing that is designed to bring about the result procured.

The Giles opinion held that the defendant did not detain the witness with the design to keep the witness from testifying. This is true since the defendant is on trial for the murder of his girlfriend, who is the witness. She had told police that the defendant had threatened to kill her when he beat her 3 weeks prior to her death. The Supreme Court decided that since he did not kill her to keep her from testifying, it violated his constitutional right to confront the witness to have her statements to the police admitted into evidence of trial.

It is understandable to need to keep interpretations narrow so not too be so over-inclusive as to deteriorate the defendant’s constitutional rights. Constitutional rights are important and should not be sacrificed. However, the distinction that he didn’t kill her to keep her from testifying does not sit well with me as a reason that he has not forfeited his right of confrontation. He is still the reason she is not able to testify. He killed her, which I see as a wrongdoing.

A post by Lauren Altdoerffer, created when the Supreme Court granted certiorari, posed the question whether the Court would follow the defendant’s assertion that the forfeiture by wrongdoing does not apply because he did not kill with the intention to silence her testimony or follow the “maxim” in Reynolds v. US that a defendant cannot benefit from his wrongdoing. The answer appears to be the former.

Erica Baasten

Summer Intern 2008

J.D. Candidate 2010

University of Colorado

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